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JAMES M. OLENDORF, Commissioner of Highways of the Town

of Afton, Resp't, v. JULIA M. SULLIVAN et al., App'lts. (Eupreme Court, General Term, Fourth Department, Filed Ferbuary 20, 1891.) HIGHWAYS–ENCROACHMENTS—NOTICE.

Where the order of the commissioner which complies with the statute is annexed to the notice and is referred to in the notice as being annexed, it is to be deemed a part of the notice, so far as its specifications are concerned, and supplies the omissions in the notice itself.

(Cook v. Covil, 18 Hun, 288, distinguished.) APPEAL from a judgment of the county court of Chenango county, entered December 4, 1889, affirming a judgment of a justice's court in a proceeding to compel the removal of an obstruction in a highway.

W. B. Matteson, for app'lts; Geo. A. Haven, for resp't.

MERWIN, J.-Whether there was, by dedication or user, a highway as claimed by the plaintiff, was a question of fact, and the evidence is sufficient to sustain the finding of the jury on that subject, within the principles laid down in Speir v. Town of New Utrecht, 121 N. Y., 420; 31 N. Y. State Rep., 414.

By § 103 of title 1, chap. 16 of R. S.; 2 R. S., 8th ed., 1388, as amended by chap. 245 of 1878, it is provided that the commissioner of highways, if in his opinion it be deemed necessary, shall order obstructions or encroachments to be removed so that the highway may be of the breadth originally intended. The order made by the commissioner must be in writing and signed and he must give notice in writing to the occupant or owner to remove such obstructions or encroachments within sixty days. “Every such order and notice shall specify the breadth of the road originally intended, the extent of the obstruction or encroachment and the place or places where the same shall be.” No fault is found with the order in this case, but it is claimed that the notice was not sufficient. A copy of the order was annexed to the notice and it was referred to in the notice as being annexed. It should therefore be deemed a part of the notice so far as its specifications are concerned. So that then the occcupant by the notice in fact served had all the information the law required to be given. In Cook v. Covil, 18 Hun, 288, it does not appear that a copy of the order was annexed and besides the order itself was defective. The statute does not require the order to be separately served.

The ruling upon the question put to the witness Briggs was perhaps not strictly correct, but at that stage of the case and in view of the prior evidence it cannot be said to have affected the merits. Code 9 3063. . The judgment should be affirmed.

Judgment of the county court of Chenango county affirmed, with costs.

HARDIN, P. J., and MARTIN, J., concur.

THE PEOPLE, Resp'ts, v. JOHN H. SWEENEY, App'lt. (Supreme Court, General Term, Fourth Department, Filed February 20, 1891.) 1. CRIMINAL LAW-IDENTITY.

On the trial of an indictment for grand larceny in obtaining money under false pretenses, the complainant and three witnesses identified defendant as one of the parties engaged in the transaction and there was evidence that certain signatures made by one of the parties thereto were in his handwriting. Defendant and his wife testified ihat he was at a distant place at the time, and this was corroborated by testimony of witnesses taken on commission. Held, that the verdict against defendant could not be said

to be against the weight of evidence. 2. SAME—GOOD CHARACTER.

Good character is not a defense; but a defendant is entitled to have the evidence on that subject considered in determining primarily his guilt or innocence. If, after such consideration, the jury conclude that he is

guilty, then his good character though established does not clear him. 3. SAME_WITNESS-EVIDENCE.

A Chicago policeman, who testified to matters in connection with defendant's arrest, was cross-examined in regard to his previous official history, and on re-direct was asked if he was one of the officers that was in the Haymarket riot in Chicago blown up by the bomb shells” and was allowed to answer “I was one of the men who were in that riot.” Held, that the evidence, while immaterial, was not prejudicial to defendant. APPEAL from a judgment of conviction in the Jefferson county court of sessions and from an order of that court denying a motion on the minutes for a new trial.

In May, 1890, the defendant and David McCord alias James Bradley were jointly indicted for the crime of grand larceny in the first degree. It was alleged that on May 2, 1888, the defendant and McCord with another party, by false and fraudulent pretenses, obtained from Jolin B. Chapman, then of the town of Adams in Jefferson county, the sum of $7,040 ; that among other things it was represented that two bars of metal weighing about forty-five pounds each and found the day before on the farm of Chapman were gold, when in fact they were worthless.

In June, 1890, the case was tried and the defendant convicted of the crime charged.

Thos. F. Kearns and W. F. Porter, for app'lt; Frank H. Peck, dist. att's, for resp'ts.

VERWIN, J.-At the trial the main contention was over the question whether the defendant was one of the parties engaged in the commission of the fraud upon Chapman. It is here claimed that the verdict, in effect finding that the defendant was one of the parties, is against the evidence, and that there is no reliable evilence to justify a verdict of guilt.

The evidence upon this subject is conflicting. The complainant and three other witnesses identified the defendant with more or less certainty, and there was evidence that certain signatures made by one of the parties in the transaction were in the handwriting of the defendant. There were also some circumstances that were claimed to be corroborative. On the part of the de. fendant, he and his wife both testified to his being at the time at

his residence in Clyde, Ohio, and this was corroborated to some extent by the testimony of several witnesses taken by commission.

A careful consideration of all the evidence leads us to the conclusion that the evidence is sufficient to sustain the verdict, and that we cannot properly say that the verdict is against the weight of evidence.

After the court had given its charge to the jury, and after the counsel of the defendant had made divers requests which had been answered by the court, the district attorney requested the court to charge " that if the crime charged in the indictment has been conclusively proven to the satisfaction of the jury beyond a reasonable doubt, that in that case any good character of the defense does not avail him.” The court so charged and the defendant excepted. This is claimed to be error.

The court had previously charged that, in case of a reasonable doubt whether the guilt of the defendant was satisfactorily shown, he was entitled to an acquittal, and that this doubt must be determined upon all the evidence in the case. The court had also, at the request of the defendant's counsel, specifically charged in substance that the evidence as to the good character of the defendant should be considered by the jury in determining the question of reasonable doubt, and might actually outweigh evidence which might otherwise appear conclusive.

These propositions were not withdrawn by the charge complained of. Taking the whole together, as it should be, the jury were in effect told that if, upon all the evidence in the case,

including that as to the defendant's character, the crime charged had been conclusively proved to the satisfaction of the jury beyond a reasonable doubt, then any good character of the defendant would not avail him. As so construed there was no error.

There was no exclusion from the jury of the evidence as to good character in determining in the first instance the guilt or innocence of the defendant. The cases cited by the defendant, People v. Wileman, 44 Hun, 187; 8 N.Y. State Rep., 300, and cases there referred to, would, therefore, not apply. Good character is not a defense, but a defendant is entitled to have the evidence on that subject considered in determining primarily his guilt or innocence. If, after such consideration, the jury conclude that the defendant is guilty, then his good character, though established, does not clear him. Such, in substance, was the rule laid down by the trial court in

this case.

Charles Nordrum, a police officer from Chicago, was called by the People as a witness in regard to certain matters in connection with the arrest of the defendant at Chicago.

He was examined and cross-examined, and then, upon his redirect examination, he was asked the question : “Are you one of the officers that was in the Haymarket riot in Chicago, blown up by the bomb shells ?" This was objected to by the defendant's counsel as incompetent and immaterial, and the objection was overruled and exception taken. The answer was: "I was one of the men who were in that riot." This ruling is claimed to be er

roneous.

It will be observed that the answer is not fully respon. sive. The witness had been cross-examined in regard to his previous official history, and a reasonable latitude upon the redirect by way of explanation was allowable. It may be that, strictly speaking, the evidence was immaterial, but in the form the answer was given no possible injury would be occasioned to the defendant.

We have examined the other exceptions presented on the part of the defendant, and find nothing that calls for a reversal. It is not apparent that any substantial right of the defendant is affected. Code Crim. Pro., $ 542.

It follows that the judgment and order should be affirmed.

Judgment and order of the court of sessions of Jefferson county affirmel, and the clerk directed to enter judgment and remit certified opy thereof, with the return and decision of this court, to the court of sessions of Jefferson county, pursuant to SS 547 and 518 of the Code of Criminal Procedure.

HARDIN, P. J., and MARTIN, J., concur.

CHARLES A. SEDDON et al., App'lts, v. ROBERT DONALD, Resp't.

(New York Superior Court, General Term, Filed January 5, 1891.) APPEAL, WHEN QUESTIONS OF FACT NOT REVIEWABLE.

Where ihe appellant did not move for the direction of a verdict, or except to any portion of the charge, but moved generally for a new trial without stating any grounds therefor, and the case does not state that it contains all the evidence, no questions of fact can be reviewed on the appeal. APPEAL from a judgment entered upon a verdict rendered in favor of defendant, and also from an order denying plaintiffs' motion for a new trial.

The action is brought by plaintiffs to recover the sum of $2,155.26, alleged to be due upon a contract of employment, by which they claim the defendant employed them as public fire insurance adjusters, and agreed to pay them five per cent, commissions upon the amount of loss received from the insurance companies.

Stallknecht & Randel, for app'lts; James M. Hunt, for resp't.

FREEDMAN, J.—The plaintiffs, at the close of the case, made no motion for the direction of a verdict in their favor. The issues were submitted to the jury under a charge to which no exception was taken. The jury having found for the defendant, the plaintiffs moved generally for a new trial, but stated no ground for their motion. Moreover there is no certificate that the case contains all the evidence. Under these circumstances no question of fact can be reviewed.

The exceptions to the admission and exclusion of evidence have been examined, but none of them constitutes sufficient ground for reversal.

The judgment and order should be affirmed, with costs.
SEDGWICK, Ch. J., concurs.

Hugh DONNELLY, App'lt, v. GEORGE B. Morris, Resp't.

(New York Superior Court, General Term, Filed January 5, 1891.) INJUNCTION-RESTRAINT OF ACTION IN FOREIGN STATE.

Plaintiff was sued by defendant in another state upon a promissory note, although both are residents of this state. In this action ior a parinership accounting plaintiff asks for an injunction to restrain the action on the note on the ground that defendant was to apply moneys received by him on partnership account to the payment thereof and that the note has equitably been so paid. Held, no ground for equitable interference. APPEAL from an order refusing an injunction to restrain defendant from proceeding in an action brought by him in Massachusetts pending an action in this court for an accounting.

Both parties reside in New York, but the defendant began the Massachusetts action against the plaintiff while he was temporarily on a visit to the latter state.

The ground of that action is a promissory note made by the plaintiff and delivered to defendant for $1,342, which was immediately indorsed and delivered to one Annie C. Wood, as trustee, the money loaned upon the note belonging in fact to Miss Wood.

The plaintiff claims that the note was fully paid, long before the Massachusetts action was begun, by moneys received by the defendant upon partnership account

Leroy S. Gove, for app'lt; George S. Bliss, for resp't.

PER CURIAM.—The plaintiff did not establish any equity upon the motion. The supposed equity was founded upon the application by defendant to the payment of the note of partnership assets, or the defendant's breach of his agreement to apply those assets to the payment of the note. Either contingency does not create an equity. All of it is that it is inconvenient to ascertain the facts and to go to Massachusetts to defend the action there. This is not ground of equitable interference.

Order affirmed, with ten dollars costs.
SEDGWICK, Ch. J., FREEDMAN and INGRAHAM, JJ., concur.

CLARK R. GRIGGS, App'lt, v. MELVILLE C. Day et al., Ex'rs,

Resp'ts. (New York Superior Court, General Term, Filed January 5, 1891.) ACCOUNTING-NEW TRIAL.

Plaintiff, a contractor, assigned to defendant as collateral for advances certain bonds and notes received in payment for the work. Some of these defendant exchanged for second mortgage bonds of the company, for which this court held, in an action for an accounting, that plaintiff was entitled to credit, and ordered a new trial unless defendauts consented to reduce the judgment by that amount. It now being claimed that defendants were entitled to a corresponding credit for the notes not paid by said bonds, a new trial is unconditionally ordered. SETTLEMENT of order. For opinion on the hearing, see 34 N. Y. State Rep., 155.

Robert G. Ingersoll, for app'lt; Melville C. Day, for resp’ts.

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